Harrison Patents Company Ld. v. W. N. Nicholson & Sons Ld. adjustment of the working depths of the tines, and, secondly, a movement to secure parallel working of the rows of the tines. The problem of obtaining these two movements had been attacked in various ways, as for example by using a parallel ruler motion, or by separately adjusting each row of tines after 5 they had been set to the required working depth. The Patent sued upon relates to a combination of two movements obtained in the following way-The wheels of the cultivator are mounted on cranks capable of rotation about a cross bar, and the tines are mounted on a bar rotating about the same cross bar. The use of cranks for altering the height of the machine frame is not new, and tines 10 have been rotated about a shaft prior to the date of this Patent, but the problem of getting parallel two or more rows of tines by the combined action of rotating the tines round a through shaft and rotating the cranks bearing the wheels about the same centre was a problem that had never before been touched. There is no disconformity between the Provisional and Complete Specifications. 15 In the Provisional Specification the tine carriers are fixed to the shaft and rotate with it, and adjustment between the tines and the crank is obtained by means of set screws; in the Complete Specification the tine carriers are fixed to a common bar which rotates around the shaft, and the adjustment is made by a lever and quadrant. The whole object in both cases is to alter the angular 20 relation of the tines to the crank, and the Provisional Specification describes the invention in its simplest form. The Specification was framed in good faith and with reasonable skill and care; the amendment was made in order that the real invention should be clearly expressed. With regard to the alleged prior grant, the invention claimed in the claiming clauses of Howard and Bousfield's 25 Specification is not the same as the invention described and claimed in Martin's Specification.

James Swinburne and William Edward Martin were called as witnesses on behalf of the Plaintiffs.

Bousfield K.C. opened the case for the Defendants.-The Patent is a very 30 narrow one. The Specifications have been cited against the Patent principally to show the state of the art with regard to cultivators, and the extent to which the field had been covered by prior inventions. The Patent is not a Patent for a novel principle of construction, it is for mere alterations in details in a field which to some extent has already been covered. The principles laid down in 35 Curtis v. Platt (L.R. 3 C.D. 135n) apply. It was not new either to have tines the points of which are vertically below the centre of the working part of the tine or to have tines governed by springs. The Patentee's exact notion of having tines going through the curves and slots, and of attaching the springs in the particular way he describes so as to get a parallel horizontal movement may 40 be new, and his Claims are confined to details of that description. The two independent movements in cultivators of adjusting the working depth by the use of a cranked axle and of tilting the tines were known prior to the Patent, and to combine these two movements involves no invention (Williams v. Nye 7 R.P.C. 67). The invention claimed by the Patentee is not the broad combi45 nation of these two movements, but the particular way of combining them. The construction of the Defendants' machine is essentially the same as that used many years ago in the "Star Horse rake invented by Ransomes and Jeffries and subsequently in the "Parallel Lift" rake manufactured by the Defendants. The levers in the Defendants' machine for altering the angle of 50 the cranks work in exactly the same way as the levers described in Nicholson's and Mather's Specification No. 17,064* of 1895. In view of these facts, if the Defendants' machine infringes Martin's Patent, that Patent must be invalid for want of subject-matter and want of novelty. In the Provisional Specification, of the Patent sued upon, the movement described is such that the tines cannot 55 be tilted without moving the cranks, whereas in the Defendants' machine the crank movement is absolutely independent of the tilting movement of the tines. The portions which have been struck out from a Specification on amendment

Harrison Patents Company Ld. v. W. N. Nicholson & Sons Ld.

may be considered in construing the amended document, and where a Specification has been amended the Patentee cannot claim any construction for his Claims that will render them wider than they were before amendment. In this particular case the Patentee is seeking to read into his amended Claim a different combination from that described in his Provisional Specification and claimed 5 in his Complete Specification before it was amended. The case of Moser v. Marsden (13 R.P.C. page 31) is an authority against this proposition. The issue, as it arises on the question of prior grant, is really the issue of first and true inventor. If, as the Plaintiffs allege, the invention claimed in Martin's Specification is the combination of two sets of motions, one of which is for 10 tilting and the other for adjusting the height in reference to the ground in such a way that two or more rows of tines may be kept in parallel horizontal position, then this invention is disclosed in the Specification of the prior grant to Howard and Bousfield (No. 21,487 of 1898) and these grantees were the first and true inventors. For the reasons indicated, according to the construction to be 15 put upon Martin's Specification, the Patent is either a narrow one for a machine of a particular construction which has not been infringed by the Defendants or it is a broad Patent for the combination of two movements, in which case it is invalid.

Charles Vernon Boyes, Frederick William Garrard, and Robert Wallace 20 were called as witnesses for the Defendants.

W. Neill summed up the case for the Defendants.-The Defendants have not infringed. The Patent is for details, and the Claims have only a limited ambit. All the elements of the combination, with the exception of the particular block in which the tines are mounted with U-shaped springs, are old, and on the 25 authority of Nobel v. Anderson (11 R.P.C. 530) the ambit of the Claims cannot be extended so as to make the Defendants' machine an infringement of the Patent. Both the movements of the Defendants' machine were present in the "Parallel Lift" rake, and, unless the Patentee can show that ingenuity and invention have been exercised in the application, a Patent for applying a well- 30 known device to an analogous purpose is invalid (Harwood v. Great Northern Railway Company 35 L.J. Q.B. page 38, and Lane-Fox v. Kensington and Knightsbridge Electric Lighting Company 9 R.P.C. 413; L.R. (1892) 3 Ch. 424). All pleas in patent actions, including the plea of prior grant, are developments of and are comprised in the plea of "first and true inventor." Howard and 35 Bousfield employed in their machine eccentrics which are mechanically equivalent to the cranks employed by the Patentee, and they are both used in the same combination of movements. The two devices are substantially identical. If the Claims of Martin's Specification include the construction adopted in the Defendants' machines, they equally include what is described 40 in Howard and Bousfield's Specification, and Martin cannot be the true and first inventor of what he claims. The Crown has been deceived, and the grant of Letters Patent is invalid (Morgan v. Seaward, 1 Goodeve Pat. Cas., page 309). The Patentee in his Provisional Specification has nothing more than is described in Howard and Bousfield's Specification, but in his Complete Specifi- 45 cation he has added other things, thereby creating sufficient disconformity to invalidate the Patent.

Walter K.C. in reply.-The validity of Martin's Patent has not seriously been attacked. Martin by his invention has overcome the very difficult problem of obtaining an even working depth in different rows of tines. This problem does 50 not arise in rakes which have only one row of teeth. The devices adopted by the Defendants in their "Parallel Lift" rakes, and those described in the Specifications of Nicholson and Mather (No. 17,064* of 1895) or of Ransome and Garrard (No. 9744 of 1897) obtained parallelism without tilt. No one had faced the problem of combining tilt and parallelism. The essence of Martin's invention 55 consists in securing parallelism by mounting a crank, for the purpose of altering the height of the frame above the ground, upon the centre of rotation of the

Harrison Patents Company Ld. v. W. N. Nicholson & Sons Ld.

tines. This invention is disclosed in the Provisional Specification, and the only difference between the Provisional and the Complete Specifications lies in the fact that in the Complete Specification one lever and quadrant is introduced in the place of the two set screws. The substance of the invention is in no way 5 altered, but the Defendants have sought to obscure the true meaning of Martin's Claims by mixing up the accidental results of this modification, with the real results of parallelism, obtained from the invention itself. There is no case where such an accident arising from a particular modification has been held to differentiate an infringing article or invalidate a Patent for disconformity. The 10 two levers and quadrants in the Defendants' machine form an intermediate step in the transition from the set screws of the Provisional Specification to the single lever and quadrant of the Complete Specification. The construction of the Defendants' machine contains every element claimed in Claim 7 of Martin's Specification and accordingly infringes it. A prior grant only invalidates a 15 Patent when the later Patent claims a monopoly of the identical invention for which protection has already been granted; upon the principle that the Crown has exhausted its powers by its first grant. An eccentric axle block is of the essence of Howard and Bousfield's invention, for by means of such a block tines can be mounted outside the road-wheels, and for this purpose a crank is 20 not a mechanical equivalent. I submit that Martin's Patent is valid, and that it has been infringed by the Defendants.

66

Judgment was reserved and was delivered on the 31st of July 1907.

SWINFEN EADY J.-The Plaintiffs claim in respect of the alleged infringement of Letters Patent numbered 25,031 of 1898 for cultivators. The Defendants 25 deny infringement and contest the validity of the Patent. The invention relates to cultivators or agricultural implements used for the cultivation of land. The tines or teeth which carry the shares are connected to springs in an improved manner, and the machine is so constructed that two or more rows of tines can be raised or lowered simultaneously, at the same time keeping them 30 level. This is done by a combination of two movements. The wheels are mounted on a crank shaft, the rotation of which raises or lowers the frame, and thus alters the height of the tines; and their angle or pitch is adjusted by rotating the cross bar to which the tines are fastened round the crank shaft. The Claim which the Defendants are alleged to have infringed is Claim 7, which 35 is thus expressed :-" In a cultivator the combination of tines having the points "of their shares perpendiculary below the centre from which the curve of the "working part of the tine is struck or thereabouts, a bar or frame carrying such tines, a shaft carried by the machine frame and from which such bar or frame "is supported, means for enabling the tine bar or frame to be tilted around said 40" shaft to enable the tines to be raised entirely out of the ground or lowered "into working position, and means for enabling the angle of the cranks by "which the said shaft is supported on the carrying wheels to be varied, sub"stantially as herein shown and described.". The Plaintiffs did not suggest that the idea of rotating a crank shaft so as to raise or lower a frame was new; 45 nor was it new to have a cultivator in which the tines were mounted on a bar between the wheels, the rotation of which, round the shaft, raised the tines or lowered them and brought them into the ground. But the novelty claimed for the present invention is the combination of the two movements, enabling the depth at which the cultivator is to work to be easily adjusted and all the tines 50 kept parellel at the required depth. There is a third element in the combination specified in Claim 7, namely, to have tines the points of which were vertically below the centre of the working part of the tine, but, again, there was no novelty in that as a separate matter. Previons to the Plaintiffs' invention, indeed from about the year 1869, there was upon the market a rake known as 55 the "Star" rake made by Ransomes, Sims and Jeffries of Ipswich under a Patent taken out in the name of Mr. Jeffries. This rake was also used in the same manner as a cultivator is used, namely.by the teeth or tines working

Harrison Patents Company Ld. v. W. N. Nicholson & Sons Ld.

below the surface of the ground. Mr. Garrard, an engineer, the manager of
Messrs. Ransomes, produced a plate F.W.G. 1, which was fixed on the imple-
ments from the time when the rakes were first made. This plate contains
directions for using "Star rakes. Direction 4 is as follows:-"For raking
"broken ground to twitch, the teeth must be lowered to work two or three 5
"inches into the ground and they should be set more pitching." This use is not
the same as that of a cultivator, but, as the teeth are to work two or three inches
into the ground, it is an analogous use. According to Mr. Wallace's evidence
cultivators are of no avail until the ground has been ploughed. The "Star'
rake was followed about the year 1892, by Nicholson's "Parallel Lift" rake. 10
This implement was used both as a rake and for light harrowing. In this rake
there is a shaft, going right through, round which the teeth are tilted, and the
frame can be raised or lowered by means of cranks and levers. In these
respects, that is as regards these movements, the cultivator complained of in
this action is an exact duplicate of the "Parallel Lift" rake, as Mr. Swinburne, 15
who was called by the Plaintiffs, conceded. But it was contended that the
Patentee's invention consisted in applying these two movements to a cultivator
with two or more rows of tines and, although no invention or ingenuity was
required to adapt the two motions to a cultivator, still the person to whom the
idea of doing it occurred was really the inventor. It was laid down by Lord
Lindley, then Lord Justice Lindley, in Gadd v. Mayor of Manchester (9 R.P.C. 20
524) that the cases establish these propositions—“ (1) A Patent for the mere new
"use of a known contrivance, without any additional ingenuity in overcoming
“fresh difficulties, is bad, and cannot be supported. If the new use involves
66 no ingenuity, but is in manner and purpose analogous to the old use, although
"not quite the same, there is no invention; no manner of new manufacture 25
"within the meaning of the Statute of James. (2) On the other hand, a Patent
"for a new use of a known contrivance is good and can be supported, if the new
66 use involves practical difficulties which the Patentee has been the first to see
"and overcome by some ingenuity of his own." Bearing these rules in mind,
there would be considerable difficulty in supporting the Plaintiffs' Patent upon 30
any construction which would include the Defendants' cultivator as an infringe-
ment. But, in my opinion, according to the true construction of the Plaintiffs'
Specification the claim is a very limited one; it is a claim for a particular
combination, and the words "substantially as herein shown and described,"
having regard to the whole of the Specification, limit the Patentee to the particular 35
mode of carrying it out shown in the Specification. This particular combination
the Defendants have not taken. In their implement the shaft, which goes through,
is a fixed shaft, not journalled, but absolutely fixed to the frame. Again the
Defendants have two levers where the Plaintiffs have one, and, instead of
turning the bar, they turn on the bar, the bar remaining stationary. There are 40
also other points of difference. But it is sufficient to say that, having regard to
what, in my opinion, is the true construction of the Specification, the Defen-
dants, not having taken the combination, have not infringed. The action fails
and must be dismissed with costs. The Plaintiffs may have a Certificate that
the validity of the Patent came in question; the Defendants a Certificate that 45
their Particulars of Objections were reasonable and proper, including all
Specifications referred to in the evidence.

Neill. It will include two prior users. One prior user was not proved.
SWINFEN EADY J.-It is only (1) and (2) of paragraph 7.

In the Matter of Alsop's Patent.

5

10

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

Before MR. JUSTICE PARKER.

July 22nd, 23rd, 24th, 25th, 26th, 29th, 30th, and 31st, 1907.

IN THE MATTER OF ALSOP'S PATENT.

Patent.-Petition for revocation.-Amendment of Specification.-Construction.-Novelty.-Subject-matter.-False suggestion.-Insufficiency.—Utility.— Prior grant.-Patent held invalid and ordered to be revoked.-Patents &c. Act 1883, Section 18.-Costs on higher scale allowed.-Stay of Order.-Undertaking not to advertise.

In 1903 Letters Patent were granted to A. for "An improved process of "treating flour to purify the same and increase the nutritive qualities thereof." The process described in the Specification consisted in subjecting the flour to the action of air which had previously been subjected to the action of an arc or flame of electricity, and one of the Claims was as follows:-"The process of 15" treating flour, which consists in subjecting it to the action of a gaseous medium "capable of bleaching the flour and of simultaneously producing a decrease in "the quantity of the carbohydrate contents and an increase in the quantity of "the protein contents thereof, substantially as described." It was stated in the body of the Specification that a change of composition of the nature specified 20 in the Claim was effected by the process. A Petition was presented for the revocation of the Patent on the ground of its invalidity. At the hearing of the Petition the Respondents, the owners of the Patent, asked for liberty to apply to the Comptroller for the amendment of the Specification by way of disclaimer. They alleged that they had discovered that the statements in the Specification 25 as to the change of composition were erroneous, and they sought to amend, under Section 19 of the Patents &c. Act of 1883, by striking out these statements and the Claims relating to them, and also certain statements as to the means employed for the production of the electric discharge. Liberty to apply was refused by Buckley J. but was granted by the Court of Appeal 30 (23 R.P.C. 65), and the owners of the Patent, having obtained leave from the Comptroller-General, amended the Specification by cancelling the Claims in question, but leaving the title and body of the Specification unaltered. The Particulars of Objections (as amended) alleged that the Patent was invalid for